Country’s highest court calls for legally binding guidelines if hospitals are forced to choose which patients need treatment
Last modified on Wed 29 Dec 2021 00.12 EST
Germany’s highest court has ruled that disabled people must be protected by legally binding guidelines in case hospitals are forced to introduce a triage system as the country braces itself for a new, more infectious wave of coronavirus.
The constitutional court announced its decision on Tuesday, ordering legislators to create a legal framework that would prevent disabled people from being unfairly treated.
It urged the state to establish a set of criteria to which doctors would have to refer before deciding which patients received lifesaving treatment if intensive care units were overwhelmed and resources were exhausted.
The case was brought by a group of nine people with disabilities and pre-existing medical conditions who feared that current medical guidelines would not protect them from being overlooked or disregarded if they became seriously ill with Covid-19.
They called for the state to lay down the selection criteria that would be used to determine which patients continued to receive possibly lifesaving treatments if a choice had to be made.
One of the complainants, Nancy Poser, a 42-year-old judge at a district court in the western city of Trier, who has spinal muscular atrophy, said she was relieved by the ruling. “Lawmakers are now obliged to protect us based on the clear understanding that disabled people like me are protected by the basic law – in an emergency situation this law cannot be simply levered out and that is very comforting,” she told the news magazine Der Spiegel.
In its ruling the court said that parliament had flouted the constitution, which states that “no person shall be disregarded because of disability”.
The issue has been a matter of debate for years, and the court has been considering the case for the past 18 months, since the issue was brought into sharp relief in the early stages of the pandemic.
So far Germany has not had to resort to a triage situation, though there is heightened awareness of the method having had to be used elsewhere in Europe, in particular Italy, during the pandemic. In recent months patients have had to be transferred to other regions in Germany and abroad in an operation involving the air force, as intensive care units have filled up in some areas.
The decision was welcomed by Karl Lauterbach, the health minister, who tweeted that “people with disabilities need the protection of the state more than any other, especially in the case of triage”. But he added that Germany now needed to try to prevent triage situations, through “effective protection measures and vaccinations”.
The onset of a new wave of coronavirus in Germany driven by the new, more infectious variant Omicron has led to the introduction of tighter contact reduction measures in recent days, and is driving the demand for third booster jabs of Covid vaccines as well as increasing the number of people getting the vaccine for the first time. With just over 70% of Germans fully vaccinated, legislators are due to debate the introduction of a vaccine mandate next month, in an effort to tackle the slow uptake.
With the expectation that infection rates are likely to rise exponentially in the coming days, medics and lawyers have broken a taboo by raising the ethical question of whether those who have chosen not to be vaccinated can be turned away for treatment or face an increase in health insurance costs should they need a hospital.
Tatjana Hörnle, the director of the Max Planck Institute for the Study of Crime, Security and Law in Freiburg, has argued that it is time for a rethink of “the prevailing opinion that a patient’s previous actions” – in this case, not getting a vaccination – should not play a role in treatment decision-making. She said that a person’s own decisions if they were of legal age and mentally capable had to be taken into account in an emergency situation such as a pandemic, in which not all patients needing intensive medical care would be able to receive it if resources were short.
Hörnle told Spiegel it was “legitimate and rational to point out” to those who might have “essentially or exclusively caused their own emergency situation” that other sick people might be treated ahead of them.
The German Institute for Human Rights has rejected the idea of using vaccine status as a criterion for deciding whether to treat anyone.
“Vaccine status should not be allowed to play any role as to who should receive intensive medical treatment or not,” said its director, Beate Rudolf. “Not even amongst those who have behaved carelessly or without solidarity.”
